State Sovereignty
Meaning and Attributes of Sovereignty
Sovereignty is one of the foundational concepts in both political science and international law. It refers to the supreme authority within a territory and the independence of a State in its external relations. The concept of sovereignty is central to understanding the position of States in the international legal system.
Meaning
Sovereignty, in essence, means the ultimate power or authority. In the context of a State, it signifies that the State is the highest authority within its defined territory and is not subject to any higher authority, either internally or externally.
Attributes of Sovereignty
Several attributes are associated with State sovereignty:
Supreme power
Within its territory, the State possesses supreme authority. This means the government of the State has the highest legal and political power over all persons, entities, and property within its jurisdiction. It can make and enforce laws, collect taxes, maintain a military, and exercise control over its population and resources without external interference (subject to international law). This is sometimes referred to as internal sovereignty.
Independence
In its external relations, a sovereign State is independent. It is not subject to the control or authority of any other State or external entity in conducting its foreign affairs. It can freely decide its foreign policy, enter into treaties, and interact with other States on an equal footing. This is sometimes referred to as external sovereignty.
Independence implies the absence of subjection to another power in external affairs. While States operate within a system of international law, their independence means they are not legally compelled by any external entity unless they have consented to such obligation.
Equality of States
International law is based on the principle of the sovereign equality of States. This means that all States, regardless of their size, power, population, or wealth, possess the same legal rights and obligations under international law. In international forums, such as the UN General Assembly, each State typically has one vote.
The principle of sovereign equality is enshrined in Article 2(1) of the UN Charter: "The Organization is based on the principle of the sovereign equality of all its Members."
This legal equality exists despite factual inequalities in political, economic, or military power. It is a fundamental principle that ensures no State is legally subordinate to another in the international system.
Other attributes often associated with sovereignty in international law include the right to territorial integrity, the right to self-determination (for peoples), and the right to exercise jurisdiction within their territory.
Example 1. Can the government of India make and enforce laws within its territory (e.g., regarding traffic rules or taxation) without seeking permission from any other country?
Answer:
Yes, the government of India can make and enforce laws within its territory without seeking permission from any other country. This is an exercise of its internal sovereignty. As a sovereign State, India has the supreme authority within its borders to govern its population and territory, including making and enforcing its own laws, provided these laws comply with the Constitution of India and applicable international law obligations India has consented to.
Internal and External Sovereignty
While the concept of sovereignty can be viewed as unified, it is often analyzed in terms of its internal and external dimensions to better understand its application.
Internal Sovereignty
Internal sovereignty refers to the relationship between the State (or its government) and the population and territory within its borders. It signifies that the State is the highest authority within its domestic sphere, with the power to make and enforce laws, maintain order, and govern its population and territory without any internal challenge to its ultimate authority (though the State's power may be limited by its constitution or other domestic laws).
Example: The authority of the Indian Parliament to make laws applicable throughout India is an aspect of India's internal sovereignty. The ability of the Indian government to collect taxes from its citizens is also an exercise of internal sovereignty.
External Sovereignty
External sovereignty refers to the relationship between the State and other international actors. It signifies that the State is independent in its external relations and is not subject to the authority of any other State or external entity. It has the freedom to conduct its foreign policy, enter into international agreements, join international organizations, and determine its place in the international system.
Example: India's ability to enter into a trade treaty with another country, or to decide whether to join a specific international organization, is an aspect of its external sovereignty. No other State can legally compel India to enter into or refrain from entering into such agreements.
In international law, the principle of external sovereignty is often associated with concepts like the right to independence, the right to territorial integrity, and the principle of non-interference in the internal affairs of other States.
While internal and external sovereignty are distinct aspects, they are interlinked. An effective government (internal sovereignty) is necessary to exercise control over territory and population, which in turn is a prerequisite for recognized statehood and the capacity to engage in external relations (external sovereignty).
Example 1. Can the United Nations legally compel a State to change its form of government or its national laws if those laws apply only within that State's territory and do not violate international law? Does this relate to the State's internal or external sovereignty?
Answer:
No, the United Nations generally cannot legally compel a State to change its form of government or its national laws applicable domestically, as long as these do not violate international law. This immunity from external interference in domestic matters is related to the State's internal sovereignty and the principle of non-interference in the domestic affairs of States, which is a corollary of sovereign equality (Article 2(7) of the UN Charter). While the UN can make recommendations or, in specific circumstances under Chapter VII, authorize actions regarding threats to international peace and security, it cannot dictate a State's internal political structure or domestic laws that do not have international implications or violate fundamental international obligations (like human rights norms binding on that state).
Limitations on Sovereignty
While sovereignty implies supreme authority and independence, in the interconnected world system governed by international law, a State's sovereignty is not absolute or unlimited. It is subject to certain limitations imposed by international law itself.
International Law
The very existence of international law acts as a limitation on the absolute sovereignty of States. By becoming a member of the international community, a State accepts that its conduct is regulated by international law. States are bound by customary international law and general principles of law, regardless of explicit consent in each case. These rules define the boundaries within which States must operate in their interactions with other States and actors.
Example: International law prohibits the use of force against other States (except in self-defence or under UN authorization). A State cannot legally invade another State, even if it is a sovereign State, because international law limits this aspect of its external relations.
Example: International human rights law imposes obligations on States to treat individuals within their jurisdiction according to certain minimum standards. A State cannot treat its own citizens arbitrarily or violate their fundamental human rights, even within its own territory, because international human rights law limits its internal sovereignty in this regard, if the State is bound by relevant human rights norms.
These limitations are inherent in the international legal system and arise from the need for States to coexist in an ordered environment.
Treaties
Treaties are a primary way in which States voluntarily limit their own sovereignty. By entering into a treaty, a State consents to be bound by the obligations specified in that treaty. These obligations constrain the State's freedom to act in certain ways, both internally and externally, in areas covered by the treaty.
Example: By ratifying a trade treaty (like a WTO agreement), a State agrees to lower tariffs or remove certain trade barriers. This limits its sovereign freedom to set its own trade policies unrestricted by the treaty terms.
Example: By ratifying an international human rights treaty, a State agrees to implement certain human rights standards in its domestic laws and practices. This limits its freedom to treat individuals within its territory in ways that would violate the treaty, thereby limiting its internal sovereignty.
The binding nature of treaties is based on the sovereign consent of the State. However, once consented to, the obligations under the treaty are legally binding under international law (*pacta sunt servanda*) and require the State to adjust its conduct accordingly, effectively limiting its discretion.
Other sources of limitations on sovereignty can include *jus cogens* norms (which are binding regardless of consent), and sometimes, binding resolutions of international organizations (like UNSC resolutions under Chapter VII).
Therefore, modern State sovereignty is best understood as existing within the framework of international law, where States are independent and supreme within their territory but bound by the rules and obligations they have consented to or are otherwise subject to under the international legal system.
Example 1. India ratifies an international treaty agreeing to protect endangered species within its national parks. Does this treaty ratification increase or decrease India's sovereignty over its national parks in this specific matter?
Answer:
Ratifying the treaty limits India's sovereignty over its national parks in this specific matter. Before ratifying, India had full sovereign discretion to manage its national parks, including policies regarding endangered species, solely under its domestic law. By ratifying the treaty, India voluntarily consents to undertake international legal obligations to protect endangered species according to the treaty's terms. This means India's actions in its national parks regarding endangered species are now subject to scrutiny under international law, and other States Parties to the treaty may have a legal interest in India's compliance. This represents a limitation on its previously unrestricted sovereign freedom in this area.
Recognition of States and Governments
Meaning and Purpose of Recognition
In international law, Recognition is a formal acknowledgment by a State that an entity or a situation possesses the qualifications to be regarded as a State or a government, or to possess other particular legal attributes. It is a crucial aspect of inter-state relations as it signifies willingness to enter into official relations.
Meaning
Recognition can be of a State, a Government, belligerent or insurgent groups, or territorial changes. The most significant forms are recognition of a State and recognition of a Government.
- Recognition of a State: Acknowledging that an entity meets the criteria for statehood and is thus capable of being a subject of international law with full rights and obligations.
- Recognition of a Government: Acknowledging that a particular regime is the effective governing authority of an existing State and is capable of representing that State in international relations. This becomes relevant when there is a change in government through unconstitutional means (e.g., revolution, coup d'état).
Recognition is essentially a political act, exercised at the discretion of individual States. There is no international legal obligation for a State to recognize another entity. However, the legal consequences of recognition are significant.
Purpose of Recognition:
- Facilitating Relations: Recognition is often a prerequisite for establishing full diplomatic relations, entering into treaties, and engaging in official bilateral interactions.
- Granting Rights and Privileges (Domestic Context): Recognition by a State often grants the recognized entity (State or Government) certain rights and privileges within the domestic legal system of the recognizing State, such as the right to sue in its courts, claim sovereign immunity, and claim ownership of state property.
- Contributing to Legal Status: While debated, the act of recognition contributes to the ability of the recognized entity to function effectively in the international legal system.
Constitutive vs. Declaratory Theory
There are two main theoretical approaches to the legal effect of recognition:
- Constitutive Theory: This theory holds that recognition is a necessary condition for the existence of a State in international law. According to this view, an entity *becomes* a State and a subject of international law only when it is recognized by other States. Recognition is seen as creating the legal personality of the new State. This theory faces challenges because it implies that an entity's existence as a State depends on the political will of other States, potentially leading to situations where an entity meets all objective criteria but is denied statehood due to lack of recognition.
- Declaratory Theory: This theory holds that recognition is merely a formal acknowledgment of an already existing fact. According to this view, an entity *becomes* a State when it fulfils the objective criteria for statehood (population, territory, government, capacity to enter into relations). Recognition by other States simply *declares* or acknowledges this existing legal status; it does not create it. The State exists and possesses international legal personality independently of recognition. This is the more widely accepted theory today, reflecting the view that statehood is based on objective facts rather than subjective political acts of other states.
While the declaratory theory is dominant, recognition still has significant practical consequences regarding bilateral relations and domestic legal rights within recognizing states.
Example 1. An entity declares itself an independent State, has a population, territory, and government, but only a few States recognize it. According to the Declaratory Theory, is this entity a State?
Answer:
Yes, according to the Declaratory Theory, if the entity meets the objective criteria for statehood (population, territory, effective government, and capacity to enter into relations with other States), then it is considered a State under international law, regardless of the number of States that have recognized it. Recognition is seen as merely acknowledging this existing fact, not creating statehood.
Criteria for Statehood
As discussed under Subjects of International Law, the criteria for statehood are generally accepted as those listed in Article 1 of the Montevideo Convention, 1933.
Montevideo Convention Criteria (Population, Territory, Government, Capacity to enter into relations with other states)
To reiterate, an entity must possess the following attributes to be considered a State in international law:
- (a) A permanent population: A stable group of people residing on the territory.
- (b) A defined territory: A control over a specific geographical area.
- (c) Government: An effective authority exercising control over the territory and population, capable of maintaining law and order internally.
- (d) Capacity to enter into relations with the other States: Independence in conducting foreign affairs.
These criteria provide the factual basis for the existence of a State. The question of recognition then becomes whether other States acknowledge that these criteria have been met by a particular entity.
Example 1. A group of people living in a refugee camp claims to be a State. They have a defined territory (the camp) and a population (the refugees), and they have formed an administrative council. However, the camp is entirely dependent on international aid and is located within the territory of another established State, which exercises ultimate authority over the camp area. Does this entity meet the criteria for statehood?
Answer:
This entity likely does not meet all the criteria for statehood. While it has a population and a defined territory (the camp), it lacks an effective government that exercises control over the territory and population independently. The fact that the camp is dependent on international aid and located within another State's territory, with that State exercising ultimate authority, means the administrative council does not possess the necessary independence and effective control to be considered a government in the sense required for statehood. It also likely lacks the capacity to enter into relations with other States independently. Therefore, it does not meet the criteria for statehood under international law.
Recognition of Governments
Recognition of a government is distinct from the recognition of a State. Recognition of a State is about acknowledging the existence of a legal entity (the State) itself. Recognition of a government is about acknowledging that a particular regime is the legitimate and effective governing authority of an already existing State. This typically becomes an issue when there is a change in government by unconstitutional means (e.g., coup, revolution).
Criteria for Recognition of Governments:
States have adopted different doctrines and approaches for deciding whether to recognize a new government that has come to power in another State:
- De Facto vs. De Jure Recognition:
- De Facto Recognition: Acknowledging that the new government is in *actual* control of the territory and population, effectively exercising governmental functions, even if its rise to power was unconstitutional. It is a provisional recognition, based on factual control.
- De Jure Recognition: Acknowledging that the new government is the *lawful* government of the State, having both effective control and legitimate title. It is a final and definitive recognition.
A government can initially be recognized *de facto* and later *de jure*.
- The Tobar Doctrine (Legitimacy): Named after Ecuadorian Foreign Minister Carlos Tobar. It suggests that recognition should be withheld from governments that come to power by revolution or coup d'état until they are legitimized by constitutional means (e.g., free elections). This doctrine emphasizes legitimacy over mere effectiveness.
- The Estrada Doctrine (Effectiveness): Named after Mexican Foreign Minister Genaro Estrada. It suggests that States should avoid explicit recognition of new governments and instead focus on whether they maintain diplomatic relations with the State. Continuing diplomatic relations with the State implies accepting the reality of the government in power, without explicitly recognizing it. This doctrine emphasizes effectiveness and avoids judging the internal political processes of other states. It is implicitly followed by many states today.
- Effective Control: Many States, including India, tend to follow the principle of effectiveness for recognizing governments. Recognition is usually granted to a government that has established firm and effective control over the territory and population of the State, demonstrating stability and the capacity to fulfil international obligations. The internal legitimacy is often seen as a matter for the State itself.
The choice of doctrine or approach is primarily a matter of a State's foreign policy and political considerations. However, recognition of a government carries significant legal consequences both internationally (representing the State) and domestically (access to courts, sovereign immunity). The recognition of a new government does not affect the existence or recognition of the State itself.
Example 1. Following a revolution in Country Y, a new government takes power by force. This new government effectively controls the entire territory and population and is able to maintain law and order. Country A announces that it recognizes this new government de facto. What does this imply about Country A's view of the new government?
Answer:
Country A's *de facto* recognition implies that Country A acknowledges that the new government in Country Y is in actual and effective control of the territory and population of Country Y, and is capable of exercising governmental functions. However, *de facto* recognition is provisional and does not necessarily imply that Country A considers the new government to be the *lawful* or legitimate government. It's a recognition based on the factual reality of control, often a preliminary step before deciding whether to grant *de jure* recognition.
Withdrawal of Recognition
Just as recognition is a political act, the withdrawal of recognition is also primarily a political decision, although it has legal consequences. Withdrawal of recognition is usually a strong expression of disapproval by a State towards another entity (State or Government).
Withdrawal of Recognition of a State:
If recognition of a State is based on the Declaratory Theory, then withdrawing recognition of a State does not legally terminate its existence as a State if it continues to meet the criteria for statehood. However, withdrawal of recognition by a significant number of States, especially powerful ones, can have severe practical consequences for the unrecognized entity in terms of international relations, participation in international forums, and access to resources.
Withdrawal of recognition of a State is rare and usually signifies a fundamental breakdown in relations or a change in the recognizing State's policy regarding the other entity's status.
Withdrawal of Recognition of a Government:
Withdrawal of recognition of a government is more common than withdrawal of recognition of a State. This happens when the recognizing State decides that the regime in power in another State no longer effectively controls the territory or represents the State, or due to major political changes or disapproval of the government's actions (e.g., gross human rights violations, support for terrorism).
The legal effect of withdrawing recognition of a government, particularly if the recognition was *de jure*, can be significant. In the recognizing State's domestic courts, the regime whose recognition is withdrawn may lose the right to represent the State, claim sovereign immunity, or claim ownership of State property located in the recognizing State.
However, withdrawing recognition of a government does not affect the recognition of the State itself. The State continues to exist as a subject of international law, even if the international community is unsure which entity effectively represents it.
Example: If Country A withdraws recognition of the government of Country Y, it does not mean Country Y ceases to be a State. It means Country A no longer considers that particular regime as the legitimate representative of Country Y in their relations.
Withdrawal of recognition, whether of a State or a Government, is a complex act with significant political and legal ramifications, reflecting the discretionary and political nature of the act of recognition itself.
Example 1. Country B recognizes the government of Country Z. Later, due to widespread human rights violations committed by the government of Country Z, Country B announces that it is withdrawing recognition of the government of Country Z. Does this mean that Country Z is no longer considered a State by Country B?
Answer:
No, this does not mean that Country Z is no longer considered a State by Country B. Country B is withdrawing recognition of the government of Country Z, not the State of Country Z. Country Z continues to exist as a State in the view of Country B. The withdrawal of government recognition means that Country B no longer considers the current regime in power in Country Z as the legitimate or appropriate representative of Country Z in their bilateral relations. This is a political statement of disapproval and has implications for diplomatic relations and legal dealings with that regime, but it does not deny the statehood of Country Z itself.